The proposals summarised below do not represent the final views of the Commission. They are based on the research and consultations undertaken by the Commission to date and, being designed as a tool for further consultation, do not contain the level of detail found in the recommendations of a final Report. Paragraph references to the sections of this Paper which amplify these proposals are provided in square brackets. The Commission therefore seeks further submissions and comments about the effectiveness of these proposals and invites suggestions for alternative or additional proposals.

A further Discussion Paper dealing with issues relating to courts and sentencing soon will be released. After a further process of consultation and submissions for both Discussion Papers, the Commission will prepare its final Report to the Attorney General containing our recommendations for reform and annexing, if appropriate, draft legislation. This Report will then be tabled in Parliament and made public.

GENERAL ISSUES

The Police Commissioner’s Instructions and Codes of Practice

Nature of Codes of Practice

1. Codes of Practice which set out the police procedures for conducting criminal investigations should be developed, modelled on those in use in the United Kingdom. The Codes would replace the relevant NSW Police Commissioner’s Instructions in this area. These Codes should contain procedures in relation to police investigations involving people with an intellectual disability, whether as suspects, victims or witnesses, the detail of which will be considered later in this Discussion Paper. [see paras 2.35-2.38, 2.45]

2. The Codes of Practice should be statutory instruments, prepared as regulations under an enabling Act, promulgated only after the public exposure of, and debate over, draft Codes, and should be subject to the normal rules of parliamentary disallowance. A Working Group should be established to manage the development of the Codes of Practice. The Group should consist of police representatives, as well as representatives of interested groups and the general community appointed by the responsible Minister or Ministers. [see paras 2.35-2.38]

3. The Codes of Practice should be made widely available to the public generally, and readily available at all police stations for consultation by police officers, detained persons and other interested persons. [see paras 2.35-2.38]

Breach of Codes of Practice

4. Where evidence is obtained improperly or in contravention of a law or Code of Practice, or in consequence of an impropriety or of a contravention of a law or Code of Practice, the evidence should be presumed to be inadmissible. Such evidence may be admitted only where the desirability of admitting the evidence substantially outweighs the undesirability of admitting the evidence having regard to the manner in which the evidence was obtained. [see paras 2.39-2.45]

5. Until such time as proposal 1 is implemented, there must be clear and effective implications arising in relation to evidence obtained in breach of the Police Commissioner’s Instructions, apart from the existing threat of disciplinary action against the police officer involved. As proposed in relation to the Codes of Practice, evidence obtained in breach of certain designated Instructions, including those sections central to investigations, arrest and detention, should be presumed to be inadmissible, although again the courts will retain the discretion to admit the evidence where the desirability of admitting the evidence substantially outweighs the undesirability of admitting the evidence having regard to the manner in which the evidence was obtained. [see paras 2.13-2.34]

Identification of intellectual disability

6. Police should have 24-hour access to experts to provide advice, answer specific questions or arrange assessments about whether or not a person in custody or being questioned has an intellectual disability. [see paras 3.12-3.14]

7. The Commission suggests that the Department of Community Services (DOCS) is the appropriate body to provide such a service in relation to identification and other information as it is the major service provider to people with an intellectual disability throughout New South Wales. The same 24-hour service would be able to provide other useful information, such as: the availability of services for people with an intellectual disability in the area; and advice about intellectual disability generally. The Commission believes that liaison between the police and DOCS is crucial in this area. The type of information which could be released and the assistance which could be provided through such a 24-hour service will need to be developed after further consultation in relation to issues of privacy and confidentiality. [see paras 3.12-3.14]

8. A Code of Practice (or the Police Commissioner’s Instructions) should repeat (or at least cross-reference) the guidelines currently provided for identifying and interviewing victims with an intellectual disability in the section of the Instructions relating to questioning suspects with an intellectual disability. [see para 3.5]

9. These guidelines should be amended to include indicators of intellectual disability and some suggested questions about the person’s background and education, together with some tasks and observations, which can be used to indicate to the police that a person may have an intellectual disability. However, it must be made clear that such factors are only to serve as a guide and there must be expert assessment to identify properly intellectual disability. [see paras 3.5-3.11]

10. The guidelines should specify that if a police officer has any reason to believe that the person being questioned has an intellectual disability, the officer must follow the procedures for questioning a person with an intellectual disability, such as the presence of a lawyer and Support Person. In other words, police should err on the side of inclusion, to ensure that the necessary safeguards are put in place for vulnerable persons. [see para 3.11]

11. A card-based intellectual disability identification system is not considered appropriate or beneficial, and should not be encouraged. [see paras 3.15-3.20]

Training for police

12. The detail of training programs is primarily an internal matter, based upon an organisation’s particular systems and procedures. Therefore the Commission proposes that an audit of current police training in relation to intellectual disability be undertaken. Training about the special needs and vulnerability of people with an intellectual disability should not just be directed to the level of the new recruit, but should be included in the training provided for custody officers and detectives, at other specialist training courses dealing with areas in which police are likely to come into contact with people with an intellectual disability, and in “Staff Development Days”. Some of the relevant issues in this area are:

• identifying whether a person may have an intellectual disability;


• the distinction between intellectual disability and mental illness;


• the relevant Codes of Practice or Police Instructions;


• the particular vulnerability of people with an intellectual disability in police questioning;


• available services for people with an intellectual disability, especially local services; and


• the consequences of failing to deal appropriately with offenders with an intellectual disability, both for the person with an intellectual disability and for the police officer involved, such as the possible exclusion of evidence. [see paras 4.11-4.15, 4.18]

13. People with disabilities should be involved in this training so that police officers have personal contact with people with an intellectual disability and the benefit of their insights and experiences. This may assist to decrease some of the misunderstandings about people with an intellectual disability. [see paras 4.16-4.17]

14. Training about intellectual disability should have regular monitoring and input to ensure that the information given is correct and the suggested procedures and terminology used are appropriate. [see para 4.18]

Administrative initiatives

Internal administrative reform

15. There should be a general police policy - and a Policy Unit or Policy Officer - dealing with issues affecting people with an intellectual disability, so that the issue can be considered at Head Office level. This also will provide an appropriate contact at this level so that difficulties can be considered and reform implemented on an ongoing basis. [see paras 5.2-5.3]

16. At the operational level, the development of a district-based General Duties Disability Officer or a patrol-based Special Needs Unit or Special Needs Officer should be considered. [see paras 5.4-5.12]

External procedures

17. At both the operational and the policy level, effective channels of communication, consultation and responsibility between the Police Service and the Department of Community Services must be established. [see para 5.14]

18. A permanent inter-departmental Committee should be established to develop and update policy guidelines in this area. Such a Committee should be independent of any particular Department and should consider the involvement of non-government community organisations. [see para 5.15]

Police investigations

19. Police must use appropriate methods of dealing with suspects with an intellectual disability. Police should be aware of the special susceptibility of people with an intellectual disability to authority figures and of their tendency to give answers that they believe are expected of them. Police also should be aware of the difficulties people with an intellectual disability may have with details such as times, dates and numbers. Leading or repetitive questions should be avoided and an attempt made to pitch the language and concepts used at a level which will be understood. These matters should be clearly spelled out in police guidelines, preferably in a Code of Practice. [see paras 6.1-6.5]

The police caution

20. Where a police officer suspects that a person has an intellectual disability, the officer should be aware that the person may be unable to understand the concept of the right to silence which underlies the requirement of the police caution. The officer should be aware that a confession obtained in such a case may be later held to be inadmissible on the grounds of voluntariness or unfairness. [see paras 6.44-6.60]

Presence of a lawyer

21. No interrogation of a suspect with an intellectual disability should take place unless a lawyer representing the person is present. [see paras 6.38-6.40]

Presence of a “Support Person”

22. No interrogation of a suspect with an intellectual disability should take place unless a third party is present. (This is exclusive of the legal adviser referred to in the preceding proposal.) The name, role and identity for that person are as follows:

• Name. The third person should be known as a “Support Person”. This name reflects the role envisaged by the Commission for that person. The Commission suggests that the terms “appropriate adult”, with its implications of a child-like role for people with an intellectual disability, and “independent third person”, with its implications of a neutral and passive role, should be avoided.


• Role. The role of the Support Person is, as its name suggests, to be supportive of the suspect with an intellectual disability, but not to be their lawyer or the guarantor of their rights. It is unrealistic (and dangerous) to expect a person without legal training to fulfil such a role. The Support Person clearly should be attending for the suspect’s benefit, rather than to assist the police, and should not be a neutral or passive observer of the proceedings. The Support Person should play a limited “interpretive” role if necessary; for example, assisting to explain the police caution, or suggesting the police rephrase a question if the suspect is having difficulties, or explaining what the suspect means by a particular word or phrase.


• Identity. The Support Person preferably should be a person (above the age of 18 years) requested by the suspect with an intellectual disability. It is anticipated that such a person will know the suspect well, whether as a family member, guardian, carer or friend (though these categories are not exclusive) and have the trust of the suspect. The Support Person should be able to communicate easily with, and be able to assist, that person. The Support Person should not be a police officer or anyone likely to be involved in the alleged offence; for example, as a witness. If the chosen person is unavailable, unwilling to assist, or inappropriate due to their potential involvement in the investigation, or the suspect cannot nominate a person, police should have access to a list of people with experience with the special needs of people with an intellectual disability in their area who would be prepared to fulfil such a role from time to time. [see paras 6.9-6.37]

23. The Support Person:
• should have an opportunity to speak privately with the suspect before the interview commences;


• should remain present for all aspects of the police interview, including cautioning, charging, fingerprinting, bail and other procedures; and


• if an intimate search is required, should be of the same sex as the suspect.

The presence (or absence) of the Support Person in relation to each of these procedures should be recorded, by the Custody Officer. [see para 6.37]




24. All matters in relation to the attendance of a Support Person, including the appropriate contact telephone numbers and names of organisations (particularly local services), should be set out clearly in police guidelines, preferably in a Code of Practice. [see para 6.37]

25. A pamphlet or other material (such as a video) should be prepared which sets out all relevant information about the role of the Support Person. This material should be provided to the Support Person before the commencement of any interrogation. [see para 6.36]

26. The Support Person should be a competent but not compellable witness in respect of any hearing relating to the content and conduct of the interview, to overcome the possibility of the Support Person being called to give evidence against the suspect. [see para 6.37]

Repetition of the caution and the adoption of the statement

27. People with an intellectual disability who are capable of understanding the concepts involved in the police caution should be reminded periodically of the caution, particularly after any substantial break in the questioning. [see para 6.52]

28. The standard “adoption” questions asked at the end of an interview should be asked in language appropriate to the person with an intellectual disability. If the interview is not electronically recorded, the person also should be given the opportunity of having their record of interview read back to them slowly, and should be asked frequently whether it is correct. [see paras 6.56-6.57]

Confessions

29. In light of the recognised vulnerability of people with an intellectual disability, the court should take extra care to determine whether the statement was truly “voluntary”, and to determine whether a voluntary admission should nevertheless be excluded in the exercise of the court’s discretion on the basis of unfairness or prejudice to the accused. Expert evidence is likely to be relevant on this point. Where a confession is admitted into evidence, a statutory provision should require the court to issue a warning to the jury of the danger of convicting on the basis of the confession alone where the person has an intellectual disability, because of doubts about the reliability of such material. [see paras 6.61-6.72]

Electronic recording of interviews

30. Police interviews with a suspect with an intellectual disability in respect of all criminal offences, should be videotaped as the words, gestures, phrasing and the intonation used may be of special significance. [see paras 6.73-6.80]

Identification parades

31. Identification parades should not be used for people with an intellectual disability in circumstances where unfairness to the suspect is likely to result, due to the unusual manner or appearance of the particular suspect. [see paras 6.81-6.82]

Diversion

32. Final decisions about the diversion from the usual course of laying of criminal charges by police to some form of punishment for the suspect (including compulsory attendance at some service or program) should not be made by the police, but by an appropriate board, tribunal or judicial officer. (The role of such bodies will be considered in the Commission’s next Discussion Paper.) [see paras 7.4-7.17, 7.37-7.40]

33. The pilot diversion program at Wagga Wagga for offenders with an intellectual disability should be the subject of an independent evaluation to determine its effectiveness and general appropriateness as a model. [see paras 7.27-7.32]

Bail and custody

Summons or arrest

34. An amendment should be made to s 352 of the Crimes Act 1900 (NSW) in terms that a police officer should only arrest a person if that officer has reasonable grounds to believe that proceeding against the person by way of a summons or court attendance notice would not be effective. [see paras 8.1-8.3]

Bail

35. A Code of Practice should include provisions (or the NSW Police Commissioner’s Instructions should be amended) to:

• ensure that the Support Person (present during the questioning of a suspect with an intellectual disability) is present to assist in the bail procedure, whether or not a lawyer also is present; and
• confer on police a positive duty to take an accused’s intellectual disability into account when assessing the likelihood of the accused understanding and complying with bail conditions, the importance of the accused’s residential and employment status in that assessment, and the relative burden upon the accused of any conditions imposed. [see paras 8.7-8.20]



36. A pilot scheme for a bail hostel for people with an intellectual disability should be established (along the lines proposed by the Kingsford Legal Centre, namely attached to an existing hostel or institution). [see paras 8.21-8.24]

37. The forms in Schedule 1 of the Bail Regulation 1979 (NSW) should be amended to provide comprehensive plain English explanations of the bail process, bail conditions, and the accused’s rights and obligations in relation to bail. [see paras 8.7-8.9]

38. The Bail Act 1978 (NSW) and the Bail Regulation 1979 (NSW) should be amended to specify whether the provision of information by an accused through the Background and Community Ties Questionnaire (Form 4) is mandatory or voluntary, and in what circumstances it is required. [see paras 8.7-8.9]

Custody officers

39. The NSW Police Service should consider the introduction of a formal system of “Custody Officers” in New South Wales to operate the proposed custodial detention scheme. [see paras 8.38-8.42]

Time limits for detention before charging

40. If the common law safeguards in relation to detention after arrest are abrogated by legislation and a “reasonable period” approach for police detention of suspects is adopted, as proposed, the criteria for the determination of what is “reasonable” must take into account the vulnerability of the suspect, for example as a result of his or her youth, Aboriginality, physical or intellectual disability, or mental illness. [see paras 8.29-8.37]

Police questioning

41. Police must use appropriate ways of questioning victims and witnesses with an intellectual disability. Police should be aware of the special susceptibility of people with an intellectual disability to authority figures and of their tendency to give answers that they believe are expected of them. Police also should be aware of the difficulties people with an intellectual disability may have with details such as times, dates and numbers. Leading or repetitive questions should be avoided and an attempt made to pitch the language and concepts used at a level which will be understood. These matters should be clearly spelled out in police guidelines, preferably in a Code of Practice. [see paras 9.18-9.24]

Presence of a “Support Person”

42. No questioning of a victim with an intellectual disability should take place if a Support Person is not present, unless the victim objects to the presence of any other person at the police interview. The name, role and identity for that person are as follows:

• Name. The third person should be known as a “Support Person”. This name reflects the role envisaged by the Commission for that person. The Commission suggests that the terms “appropriate adult”, with its implications of a child-like role for people with an intellectual disability, and “independent third person”, with its implications of a neutral and passive role, should be avoided.


• Role. The role of the Support Person is, as its name suggests, to be supportive of the victim with an intellectual disability. The Support Person should be clearly attending for the victim’s benefit, rather than to assist the police, and should not be a neutral or passive observer of the proceedings. The Support Person should play a limited “interpretive” role if necessary, for example, suggesting the police rephrase a question if the victim is having difficulties, or explaining what the victim means by a particular word.


• Identity. The Support Person preferably should be a person (above the age of 18 years) chosen by the victim with an intellectual disability. It is anticipated that such a person will know the victim well, whether as a family member, guardian, carer or friend (though these categories are not exclusive), have the trust of the victim, and be able to communicate easily with that person. The Support Person should not be a police officer or anyone likely to be involved in the alleged offence; for example, as a witness. If the chosen person is unavailable, unwilling to assist, or inappropriate due to their potential involvement in the investigation, or the victim cannot nominate a person, police should have access to a list of people with experience with the special needs of people with an intellectual disability in their area who would be prepared to fulfil such a role from time to time. [see paras 9.24-9.28]

43. The Support Person:


• should have an opportunity to speak privately with the victim before the interview commences;


• should remain present for all aspects of the police interview, subject to the wishes of the victim; and


• if a medical examination is required, should be of the same sex as the victim.



The presence (or absence) of the Support Person in relation to each of these procedures should be recorded. [see para 9.28]


44. All matters in relation to the attendance of a Support Person, including the appropriate contact telephone numbers and names of organisations (particularly local services), should be clearly set out in police guidelines, preferably in a Code of Practice. [see para 9.28]




Review of police decisions

45. Refusal to prosecute by the police or to take a statement, on the ground that a person has an intellectual disability and would be unable to give a statement, should be subject to review. A refusal to take a statement should be reviewed automatically, not on the request of the victim, by a senior officer. The refusal to prosecute where a complaint has been laid and a statement taken should be reviewable, either by a senior officer or the Director of Public Prosecutions. [see paras 9.14-9.15]

Electronic recording of interviews

46. Videotaping of interviews with victims with an intellectual disability should be carried out to the greatest extent practicable, as this will be useful, not only to the victim with low literacy levels when refreshing his or her memory, but to the court. [see para 9.29]

Education

47. Police (among others) should be involved in education programs for people with an intellectual disability and carers as to legal rights, services available for victims of crimes, and guidelines as to recognising and reporting crime. [see paras 9.39-9.40]